MUSAMMAT CHOTI Vs. KHECHERU

JUDGEMENT

(1.) Khecheru presented an application to the Court of Mr. Nathu Ram, a Magistrate of the First Class of Meerut, asking for sanction to prosecute Mummmat Choti for an offence under Section 211, Indian Penal Code, on the 28th October 1919. The exact section is not given in this application but it appears in the cognate application filed on the same day. On the 21st November 1915 the Court of the First Class Magistrate of Meerut accorded sanction as applied for. It was brought to his notice that the sanction, so it was contended, should have been applied for from another Magistrate. In connection with this in his order granting sanction he writes: it was just yesterday, 30th of November, I was relieved of the charge of the Sub Division of Sardhana and placed in charge of the Sub-Division of Hapur. The learned Magistrate referred Counsel to the ruling of Dalip Singh v. Nawal 38 Ind. Cas. 335 : 18 Cr. L.J. 303 : 16 A.L.J 161 : 39 A. 297, which he appears to have found in what he describes as the Criminal Law Journal, Vol. 18; page 303. Choti then went to the District Judge of Meerut and applied under provisions of Section 195 of the Criminal Procedure Code that the order dated the 21st of November 1919 might be set aside because the sanction had not been properly granted. The petition is beaded as an appeal. This is a mistake. I am aware that a learned Judge of this Court in Bhadesar Tewari v. Kamta Prasad 18 Ind. Cas. 274 : 11 A.L.J. 11 : 14 Cr. L.J. 47 : 35 A. 90 has laid down that proceedings of this kind should be registered as appeals. But with all due respect it must be remembered that an appeal can only lie from an order when provided by the Criminal Procedure Code or by any other law for the time being in force. No suggestion has been made that any other law" has provided an appeal in this class of cases. We are thrown back upon the Code. The Chapter in the Criminal Procedure Code which deals with appeals is Chapter 31 and nowhere within the bounds of that Chapter has an appeal been provided from an order passed by a Criminal Court under Section 195.

(2.) It is true that in Section 195, Clause (6), a sanction given may be revoked by any authority to which the authority giving it is subordinate. Clause 7 lays down that for the purpose of this section every Court should be deemed to be subordinate only to the Court to which appeals from the former Court ordinarily lie. The word "only" contained in this clause is an important limitation and cannot be overlooked. It would be obviously incorrect to say that Section 195, Clauses 6 or 7, create an appeal from the Criminal Court giving sanction I have dealt with this matter fully in Saligram v. Ramji Lal 3 A.L.J. 394 at p. 403 : A.W.N. (1906) 103 : 3 Cr. L.J. 400 : 1 M.L.T. 219 : 28 A. 554. The other learned Judges who were members of the Full Bench in which this decision was given did not dissent and may be taken to have agreed with the view taken by me, and I have had no reason since to be doubtful that the view which I then took was other than the right view. The Calcutta High Court in Ramadhin Bania v. Sewbalak Singh 6 Ind. Cas. 473 : 37 C. 714 : 11 Cr. L.J. 357 : 14 C.W.N. 806. and again in Hari Mandal v. Keshab Chandra Manna 14 Ind. Cas. 760 : 40 C. 37 : 13 Cr. L.J. 296, 16 C.W.N. 903 : 16 C.L.J. 515 has held that an application under Section 195, Clause (6), to the superior Court is not an appeal. In this Court a learned Judge held that the right conferred by the sixth Clause of Section 195 is not exactly a right of appeal but is strongly analogous to such right; Ram. Raja Bat v. Sheo Dayal 3 A. 563 : A.W.N. (1881) 37 : 2 Ind. Dec. (N.S.) 343. The learned Judge of Meerut had ground for dealing with the application as though it were an application in revision but passed upon it only the order "rejected." Now in more than one case this Court has pointed out that an order of this kind is not sufficient and should not have been made, and the learned Sessions Judge should bear this in mind and not content himself with writing merely the word "rejected." The Magistrate, however, was thoroughly cognizant of the facts of the case and has gone very fully into them in his judgment.

(3.) Musammat Choti has come here in revision. The grounds set out are (1) that the learned Magistrate who gave sanction had ceased to be the Sub-Divisional Magistrate of Sardhana on the date Le granted sanction and the matter should have been dealt with by his successor, (2) that the learned Magistrate should not have granted sanction under the circumstances of this case, (3) the judgment of the learned Sessions Judge is not in accordance with law. All these grounds are in my opinion entitled to little or no weight. As regards the third I have pointed out above. As regards toe second ground I hold, after careful consideration, that this Court has no authority to revoke or to grant sanction in this case. The Court of the First Class Magistrate of Meerut is not in the words of Section 195 subordinate to this Court Appeals from Courts of the First Class Magistrates of Meerut do not ordinarily he to this Court. I was referred to the words used in Section 439 of the Code of Criminal Procedure. It was argued that the words any of the powers conferred on a Court of Appeal by Section 195 clearly lead to the opposites conclusion. I here may be case s in which this Court would have such authority. As for instance if sanction had been given by the Sessions Judge of Meerut and this Court held that the sanction was not for any reason expedient or regular, it could, acting under Section 439 in exercise of the power granted by Section 195, revoke that sanction. But it does not follow that because it can exercise this power under one set of circumstances., it can exercise that power when such exercise would be in defiance of the limitation prescribed by Clause (7) of Section 195.